JACK OSBORNE, ET AL.
Session November 22, 2016
from the Chancery Court for Unicoi County No. 7799 John C.
Osborne, Margaret Howell, and Kathy Street (collectively
"Plaintiffs") sued Michael P. Hardin
("Defendant") seeking to extinguish any right
Defendant had to a right-of-way ("the
Right-of-Way") on real property located in Unicoi
County, Tennessee. After a trial, the Chancery Court for
Unicoi County ("the Trial Court") entered a
judgment finding and holding, inter alia, that the
Right-of-Way is for the benefit of both Plaintiffs and
Defendant and neither may block or impede the other's use
of the Right-of-Way. Plaintiffs appeal to this Court raising
issues regarding whether the Trial Court erred in setting
aside a judgment by default and proceeding with trial,
whether the Trial Court erred in proceeding with trial in the
absence of two of the Plaintiffs, and whether the Trial Court
erred in finding that Plaintiffs failed to prove adverse
possession. We find and hold that the Trial Court did not
abuse its discretion in setting aside the judgment by
default, that Plaintiffs never objected to proceeding with
trial in the absence of the two Plaintiffs, and that
Plaintiffs failed to prove adverse possession. We affirm the
Trial Court's judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
D. Culp, Johnson City, Tennessee, for the appellants, Jack
Osborne, Margaret Howell, and Kathy Street.
S. Pate, Erwin, Tennessee, for the appellee, Michael Hardin.
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which CHARLES D. SUSANO, JR. and JOHN W. MCCLARTY, JJ.,
MICHAEL SWINEY, CHIEF JUDGE.
filed their Complaint to Quiet Title in April of 2015. On
August 10, 2015, Plaintiffs filed a Motion for Default
alleging, in pertinent part, that Defendant had been served
with Plaintiffs' complaint by hand delivery on July 2,
2015, and that Defendant had failed to answer the complaint.
A hearing was held on the Motion for Default on September 10,
2015. Defendant appeared pro se at the hearing on the motion
for default intending to defend against Plaintiffs'
complaint. After the hearing on the motion, the Trial Court
entered an order on September 10, 2015 granting Plaintiffs
judgment by default and extinguishing Defendant's right
to use the Right-of-Way.
then hired an attorney and filed a motion to set aside the
September 10, 2015 judgment by default alleging that
Defendant was pro se when he was served with the complaint
and did not understand the significance of the papers served
on him, that Defendant did appear in court prepared to defend
against the complaint when he received notice of the hearing,
that Defendant would be able to prove his right to use the
Right-of-Way, and that Plaintiffs would not be prejudiced if
the suit were reinstated. After a hearing, the Trial Court
entered its order on December 8, 2015 setting aside the
September 10, 2015 judgment by default and setting the case
for trial. In its December 8, 2015, order the Trial Court
found and held, inter alia:
[Defendant] testified that he was self-represented during the
initial course of the adjudication of this case until he
retained Mr. Pate for the purpose of setting aside the
default judgment. He testified, and the Court finds his
testimony persuasive, that he did appear in court on
September 10, 2015, with his deeds and records for the
purposes of proving his title, and he appeared with the idea
that he would have his day in court and would assert why he
believes Plaintiffs are not entitled to the judgment that
He operated under the assumption that when he was noticed to
be in court that when he appeared in court he would then have
his opportunity to have his access to justice. He operated
without the benefit of legal counsel, but his actions reveal
to this Court that he had no intention of willfully allowing
a judgment to go against him without attempting to defend
himself. He did not ignore the notice to come to court; he
He has asserted what may be a meritorious defense and the
record is not persuasive that Plaintiffs will suffer
prejudice if the default judgment is set aside. His
inadvertence in not answering the complaint was excusable
because he did come to court when he thought he had an
opportunity to address the merits of the matter and he has
This is a case where the Court is cognizant that the public
policy of the State of Tennessee is that justice favors trial
on the merits, and in this case the default judgment is set
aside and the case shall be set for trial.
case proceeded to trial without a jury in April of 2016.
Jack Osborne testified at trial that he lives at 458 Rock
Creek Road, which is across the street from the parcel
containing the Right-of-Way. Mr. Osborne and his wife
purchased the 458 Rock Creek Road property in 1973. Prior to
that time, Mr. Osborne lived in his parent's house at 461
Rock Creek Road, which is the parcel that contains the
Right-of-Way. Mr. Osborne was 16 or 17 years old when his
parents purchased the 461 Rock Creek Road property in 1964.
At that time there was a barn and a small farm on the
property, and it was Mr. Osborne's understanding that Mr.
C.E. Tittle used the Right-of-Way to get a tractor in and
out. Mr. Osborne stated, however, that he never saw Mr.
Tittle "go through there with farm machinery." Mr.
Osborne testified that after his parents purchased the
property, Mr. Osborne never saw Mr. Tittle go in and out of
the property. Mr. Osborne stated that he believed that Mr.
Tittle died in the mid-1970s.
Osborne stated that he never saw anybody use the
Right-of-Way. He admitted that from the time his parents
purchased the property he was aware that someone else, Mr.
Tittle, had the right to use the Right-of-Way "for farm
machinery." Mr. Osborne admitted, however, that the
description in the deed says nothing about limiting the use
of the Right-of-Way to farm machinery. Mr. Osborne never saw
Mr. Tittle or Mr. Tittle's heirs use the Right-of-Way,
but stated that he has seen Defendant go "through there
a few times, but nobody else."
Osborne was asked what his parents used the Right-of-Way for,
and he stated: "Well, our driveway is within two foot of
the house; so we used it for our driveway, probably about 20
foot of it is garden space, and the rest is just grass
yard." When asked how large the grass yard section was,
Mr. Osborne stated: "it runs all the way across the
property; so it's probably around 70 foot at that
point." Mr. Osborne stated that they mowed the yard and
kept the driveway graveled and maintained.
Osborne stated that the driveway was "probably around 14
foot [wide] in the front and it goes back about halfway of
the property." The driveway abuts Rock Creek Road. Mr.
Osborne stated that they put gravel down "probably [in]
'65 because we, you know, when we moved in we had some
things to do." The section with the gravel does not
extend all the way to Defendant's property.
Osborne testified that about ten or twelve feet of the garden
area extends into the Right-of-Way. He stated that he
maintained the garden "since 1964, " and further
explained: "My parents did it for some years and then
we've maintained it for several years. And after Dad got
sick in the '80s, then I pretty well maintained it myself
after that." Mr. Osborne stated that from the time his
parents purchased the property until the mid-1990s, they
tended the garden "[p]retty much every year." Mr.
Osborne admitted that since his father passed away in 2002,
they have not tended the garden. When questioned further, Mr.
Osborne testified that prior to 2002, the last time he tended
the garden was in the mid-1990s. He also admitted that he did
miss "[m]aybe a couple" of years because he was
working and was too busy.
Osborne testified that he never erected any buildings in the
Right-of-Way, but stated that he has a storage building in
the area that might extend part way into the Right-of-Way.
Mr. Osborne, however, was unsure if the building actually did
or did not extend in to the Right-of-Way. He admitted that
the storage building does not block the Right-of-Way. The
storage building has been there for approximately two years.
Osborne never asked anyone's permission to use the
Right-of-Way. He was asked if he ever tried to block the
Right-of-Way, and he stated:
No. . . . Let me - - let me take that back. A few years ago,
when [Defendant] got involved and was talking about building
a road and he was telling our neighbors that he was going to
build a road through there and that he owned part of this and
so forth - - so I went back there and I put up a
no-trespassing sign because, you know, we'd maintained
that for 50-some-odd years and I ...